Review of Recent Case Law

Vaughan v London Borough of Lewisham and Others UKEAT/0534/12

Covert recordings are not automatically inadmissible as evidence in a tribunal claim but the party must consider the format of the application and the recordings themselves, the Employment Appeal Tribunal has held. In this case, however, it was held that a vast amount of covert recording, some 39 hours, would not be admitted by the tribunal as evidence. Despite the argument by the claimant, Vaughan, that the recording would provide conclusive evidence that the official notes submitted by the respondent were incorrect, the EAT held that the recordings were not permitted due to the poor style in which they were submitted. Judge Underhill of the EAT held that in determining whether covert recordings could be admitted into a hearing, the conduct of the individual who carried out such an action would be considered. Underhill noted that the most decisive factor in this instance was the method by which Vaughan submitted the recordings which was highly discredited by the EAT. Vaughan failed to provide both transcripts and recordings to the respondents prior to the trial. Underhill stated that given the extent of the recordings, the inevitable time and cost both to the respondent and tribunal to review such evidence would be disproportionate. He continued to state that some areas of the recording may well be relevant but due to the poorly submitted evidence it would not be fair for the tribunal to consider. Underhill concluded that had Vaughan followed a better procedure, which included providing the respondents with both a transcript and recordings (amounting to 39 hours’ worth of tape) prior to the trial, which would enable any disputes to be resolved and unnecessary minuets removed from the ‘tapes’ submitted to trial. He expressed that if Vaughan was to comply with this and resubmit the recordings via a more focussed application supported by the relevant documentation, “she may get a different result.”

Mental Health Care (UK) Ltd v Biluan & Anor UKEAT/0248/12/SM

The EAT has recently provided guidance relating to the appropriate methods of selection used for redundancy purposes, highlighting that past performance of those ‘at risk’ from redundancy should be considered. It was also inferred that during any form of competency assessment, full training in relation to any scoring criteria should be given to the panel with the criteria itself clear and applied appropriately. The case involved a multi-faceted approach to redundancy selection with an exercise comprising reviewing disciplinary and absence records and a competency assessment involving a written assessment; interview (asking five pre-set questions) and verbal group assessment. In the majority of cases it was the score from the competency assessment which decided those to be selected for redundancy. A number of managers were surprised that some of the employees achieving low scores, and therefore being selected for redundancy, were reliable and well-thought of employees, however, they approved the decisions believing the process to have been ‘robust’. In holding that the dismissals by way of redundancy were unfair, it was reasoned that in assessing capability mainly on the basis of competency assessments, no account had been taken of prior performance. The tribunal also remarked that it was unusual for the team conducting the assessments not to have any experience of working with the individuals at risk of redundancy, likening the process to something more typical of a recruitment and selection situation. In relation to the use of competency as a selection criterion for redundancy the tribunal observed that normal practice involved obtaining assessments of proficiency from managers in a position to judge the actual qualities of the ‘at risk’ employees. The EAT said that implementing exercises designed to remove all elements of subjectivity and bias, whilst desirable, are not required. An element of subjectivity was acceptable as long as the decision-takers, aware of any risks, guarded against them so far as possible.

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